While U.S. EPA is poised to issue a series of federal regulations related to PFAS and impacts to the environment, it is the states that are taking the lead on regulating the presence of Per- and polyfluoroalkyl substances (PFAS) in consumer products. Such regulations are forcing manufacturers to reach back into their supply chains to verify their products do not contain PFAS. The breadth of the state regulations related to PFAS in consumer products shows that the focus on exposures to such chemicals is not just limited environmental exposures.
Personal Injury Claims Related to PFAS Exposure
The wave of state regulations related to the present of PFAS in consumer products is occurring as personal injury cases related to PFAS exposure from consumer products it is still only at the early stages. The trail blazing litigation related to PFAS is the multi-district litigation (MDL) in federal court in South Carolina involving fire-fighting foam that contains PFAS (aqueous film-forming foams or AFFF). Some 2,500 cases have been consolidated into this MDL.
The early stages of this litigation were focused on PFAS in drinking water as a result of releases of AFFF. In 2023, the drinking water cases resulted in very large proposed settlements. 3M reached a tentative settlement to pay approximately $12.5 billion, and DuPont de Nemours, Inc., Chemours Company, and Corteva, Inc. (“DuPont”) reached a tentative settlement of approximately $1.2 billion. The settlement monies will be earmarked to cover testing and remediation costs related to PFAS in drinking water.
The focus of the MDL is now shifting to personal injury claims. In December 2023, attorneys representing allegedly injured individuals and manufacturers of AFFF agreed that 25 individuals comprise the pool of initial personal injury claims to be brought to trial. These so-called personal injury bellwethers will be the first personal injury cases in the AFFF to move forward.
One of the biggest hurdles to personal injury claims related to PFAS exposure has been establishing a causal link between exposure to PFAS and personal injury. If the AFFF bellwether cases successfully establish this link, this could unleash a wave of litigation related to consumer products that contain PFAS, such as cosmetics, textiles, cookware and other consumer goods.
Types of Consumer Laws Regulating PFAS
Generally, the states that have adopted consumer product regulations have enacted laws that fall in to the following major categories:
- Banning “Intentionally Added” PFAS in Consumer Products.
- Reporting or Notification Requirements for Products that Contain PFAS.
For laws that ban “intentionally added” PFAS, states are requiring manufacturers to certify that their products do not contain intentionally added PFAS. This certification can often take the form of a “certificate of compliance” that must be maintained by the manufacturer. Other laws require manufacturers to report to the state if their products contain PFAS or place warning labels on the product and/or website that the product contains PFAS.
Which States have Adopted Consumer Product Laws Related to PFAS?
The chart below provides a high-level summary of states that have passed consumer product laws related to PFAS. What is striking is the number of states which have adopted consumer product laws related to PFAS and the variety of those laws.
| California | See summary below |
| Colorado | Ban on PFAS in food packaging, carpets, fabric treatments, indoor textile furnishings and outdoor furniture. |
| Connecticut | Bans food packaging to which PFAS has been intentionally added. |
| Hawaii | Bans food packaging to which PFAS has been intentionally added. |
| Maine | Complete ban on any products containing intentionally added PFAS. Manufacturers are required to report the presence of intentionally added PFAS to the State. |
| Maryland | Prohibits manufacturing or distribution of any food packaging, rugs, or carpets with intentionally added PFAS. |
| Minnesota | Requires reporting of consumer products with intentionally added PFAS. Bans food packaging to which PFAS has been intentionally added. Bans a number of consumer products with intentionally added PFAS, including: carpets, fabric treatments, textile furnishings, cookware, cosmetics, dental floss, children’s products and others. |
| New York | Bans food packaging to which PFAS has been intentionally added. Bans the sale of apparel with intentionally added PFAS. |
| Oregon | Bans food packaging to which PFAS has been intentionally added. |
| Rhode Island | Bans food packaging to which PFAS has been intentionally added. |
| Washington State | Toxic Pollution Law provides the State Department of Ecology with authority to issue administrative orders to manufacturers about chemicals designated as a “priority” and their presence in products. |
| Vermont | Bans the manufacture, sale, and distribution of any food package, rugs, carpets, stain treatments for rugs and carpets and ski wax and related tuning products to which PFAS have been intentionally added and are present in any amount. |
California Consumer Laws Regulating PFAS
California is often the leader in adopting new environmental, public health and green chemistry regulations. In order to provide a deeper review of how consumer laws related to PFAS are constructed, below is a summary of the current California laws regulating PFAS in consumer products.
California A.B. 1200- Food Packaging and Cookware
A.B. 1200 restricts the distribution and sale of food packaging that contains PFAS. Beginning January 1, 2023, businesses, including shops and restaurants selling take-out food, were prohibited from distributing, selling, or offering for sale any “food packaging” that contains regulated PFAS. The presence of PFAS in a product or product component at or above 100 parts per million, as measured by total organic fluorine.
Beginning January 1, 2024, A.B. 1200 sets forth disclosure and labeling requirements that manufacturers of cookware must follow when the manufacturer “intentionally” includes PFAS in a cookware product. If the cookware has an intentionally added PFAS either in the handle or the product surface that contacts food, it triggers the requirement to provide certain information on the website for the cookware. The website for the cookware must contain the following information:
- List the chemicals in the cookware that are also present on the designated list that the Department of Toxic Substances Control (DTSC) maintains under its Safer Consumer Products program. PFAS appears on the designated list.
- Names of the lists referenced by DTSC in compiling its designated list on which each chemical in the cookware is present.
- A link to the internet website for the authoritative list or lists.
If the cookware has intentionally added chemicals from the designated list, then the manufacturer will also have to list the presence of those chemicals on the product label. There must be a link to more information about the chemical in the label.
A manufacturer cannot make a claim that the cookware is free of any specific chemical unless no individual chemical from the chemical group or class is intentionally added to the cookware.
A.B. 1817 Prohibiting PFAS in Textiles.
Beginning January 1, 2025, AB 1817 prohibits the manufacture, distribution, sale, or offer for sale in the state of “any new, not previously used, textile articles that contain regulated” PFAS substances. A.B. 1817 defines “textiles articles” as “textile goods of a type customarily and ordinarily used in households and businesses, and include, but are not limited to, apparel, accessories, handbags, backpacks, draperies, shower curtains, furnishings, upholstery, beddings, towels, napkins, and tablecloths.”
A manufacturer of a textile article shall provide persons that offer the product for sale or distribution in the state with a certificate of compliance stating that the textile article is in compliance with the requirements of A.B. 1817 and does not contain any regulated PFAS.
A.B. 652 Prohibiting PFAS in Juvenile Products
Beginning July 1, 2023, a person, including a manufacturer, shall not sell or distribute any new juvenile product that contains regulated PFAS chemicals. “Regulated PFAS” means either of the following: (1) PFAS that has been intentionally added to a product that creates either a functional or technical effect; or (2) the presence of PFAS in a product is at or above 100 ppm, as measured in total organic fluorine.
The law defines “juvenile product” as a product designed for use by infants or children under 12 years of age, including, but not limited to, a baby or toddler foam pillow, bassinet, bedside sleeper, booster seat, changing pad, child restraint system for use in motor vehicles and aircraft, co-sleeper, crib mattress, floor play mat, highchair, highchair pad, infant bouncer, infant carrier, infant seat, infant sleep positioner, infant swing, infant travel bed, infant walker, nap cot, nursing pad, nursing pillow, play mat, playpen, play yard, polyurethane foam mat, pad, or pillow, portable foam nap mat, portable infant sleeper, portable hook-on chair, soft-sided portable crib, stroller, and toddler mattress.
A.B.-2771 Prohibition of PFAS in Cosmetics
Beginning January 1, 2025, no person or entity shall manufacture, sell, deliver, hold, or offer for sale in commerce any cosmetic product that contains intentionally added PFAS. The term “cosmetic product” means an article for retail sale or professional use intended to be rubbed, poured, sprinkled, or sprayed on, introduced into, or otherwise applied to the human body for cleansing, beautifying, promoting attractiveness, or altering the appearance.
Other bills were vetoed by the Governor which would have regulated PFAS in additional categories of consumer products. A.B. 727 would have regulated PFAS in cleaning products and floor sealers. A.B. 2247 which would have required registration by 2026 of all products containing intentionally added PFAS.